SM BHUBAN MOHINI DEBI Vs. BIRAJ MOHAN GHOSH

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs and the suit was one commenced by them for establishment of their title to the lands in suit and for recovery of khas possession on evicting defendant 1. There was a claim for mesne profits against both the defendants and an alternative claim for rent in case defendant 1 succeeded in establishing his tenancy right to the disputed land. The plaintiffs case was that the lands in suit appertained to the secular estate of one Rajmohan Nag Choudhury which vested in the predecessor of the plaintiffs under a sale in execution of a mortgage decree. Defendant 1 was a tenant in occupation of the said lands, but in a rent suit which was instituted against him by the plaintiffs he denied their title and set up a tenancy right under the debuttar estate of Raj Mohan Nag Choudhury which admittedly did not pass to the plaintiffs predecessor by the mortgage sale and which is now in possession of defendant 2 as a receiver appointed by the Court.

(2.) This plea was given effect by the Court which decided the rent suit and the plaintiffs claim for rent was dismissed. The plaintiffs have now commenced this suit for recovery of khas possession of the lands on the footing that defendant 1 is a trespasser. It was alleged that certain rent receipts were produced by defendant 1 in the rent suit in collusion with defendant 2 for the purpose of proving the title of the debutter estate, and in fact the latter was all along asserting its right to realize rents from defendant 1. On these allegations the plaintiffs wanted mesne profits against both the defendants and in case it was found that defendant 1 was a tenant, and had paid rents to the debutter estate, there was an alternative prayer for recovery of the sums realized as rents from defendant 2. Both the defendants contested the suit. Their contention in substance was that the lands in suit appertained to the debutter estate and the plaintiffs had no right or title to the same. It was said that the decision in the rent suit was quite correct, and that defendant 1 had as a matter of fact, paid rents to the debutter estate up to 1340 B.S. Defendant 2 raised a further point that the suit was not maintainable against him without a notice under Section 80, Civil P.C. The trial Court oh a consideration of the evidence in the record came to the conclusion that the plaintiff had no title to the lands in suit, which were in reality a part of the debutter estate of Raj Mohan Nag Choudhury. On this finding, the suit was dismissed, and the Munsif did not go into the other questions raised in the issues, including the question of notice under Section 80, Civil P.C. There was an appeal taken by the plaintiffs, against this decision, and the Additional District Judge of Alipur who heard the appeal reversed the finding of the Munsif on the question of title and came to the conclusion that the property in suit was included in the secular estates of Raj Mohan and hence passed by the mortgage sale to the plaintiffs predecessor. As the trial Court had not decided the issue raised on the question of notice under Section 80, Civil P.C. the case was sent back to the trial Judge for re-hearing on the point. The Munsif, after remand decided this issue-against the plaintiffs and held that the suit, was not maintainable against defendant 2r as no notice was served upon him under Section 80, Civil P.C. This view was affirmed; in appeal by the Additional District Judge, 24-Parganas. The result was that the suit was dismissed against defendant 2. It was disposed of as against defendant 1 on the terms of a compromise entered into between him and the plaintiffs. It is against the order of dismissal against defendant 2 that the plaintiffs have come up on second appeal to this Court.

(3.) Dr. Bysack appearing in support of the. appeal has contended in the first place that a receiver is not a public officer and consequently no notice under Section 80, Civil P.C. is necessary. This contention is opposed to a number of authorities of this Court where it has been held that a receiver is a public officer and is entitled to a notice under I Section 80, Civil P.C. It cannot be disputed that it is the duty of a receiver to take, charge of the properties in suit on behalf of the Court. He exercises his functions under the supervision and control of the Court and is remunerated under its orders. He can thus be deemed to be an officer of a Court of justice whose duty it is to take charge or dispose of any property within the meaning of Section 2(17)(d), Civil P.C. Even if he is not an "officer" he is clearly a person especially authorized by a Court of justice to perform such duties, as laid down in that clause. The case in Jagadsh Chandra Deo V/s. Debendra Prasad Bahadur is a direct authority on the point, that a receiver is a public officer. The learned Judges who decided this case observed in their judgment that there were several earlier decisions in which the same view was taken. It is true, as has been pointed out by Dr. Bysack, that most of the earlier cases were really cases of a common manager and not of a receiver appointed under the provision of the Civil Procedure Code : vide Bani Madhab V/s. Deb Narayan (1920) 7 A.I.R. Cal. 575 and Naba Kishore Mandal V/s. Atul Chandra Chatterjee (1913) 40 Cal. 150. In fact the earliest reported authority on the question of a receiver being a public officer is to be found in Radharani Dasya Vs. Purna Chandra Sarkar . This was an application for leave to appeal to His Majesty in Council against a judgment of Page and Patterson, JJ. passed in Radha Rani Dasya V/s. Purna Chandra Sarker Reported in . The suit out of which the appeal arose was one instituted against an ex-receiver for recovery of money alleged to have been misappropriated by the latter. The Court below dismissed the suit on the ground of an absence of notice under Section 80, Civil P.C. and this Court affirmed that decision.